People v. Canty

• Court: California Supreme Court
• Writing for the Court: GEORGE, C.J.
• Citation: People v. Canty, 90 P.3d 1168, 14 Cal.Rptr.3d 1, 32 Cal.4th 1266 (Cal. 2004)
• Decision Date: 27 May 2004
• Docket Number: No. S109537.,S109537.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michelle Elaine CANTY, Defendant and Appellant.

14 Cal.Rptr.3d 1

90 P.3d 1168

32 Cal.4th 1266

The PEOPLE, Plaintiff and Respondent, v. Michelle Elaine CANTY, Defendant and Appellant.

No. S109537.

Supreme Court of California.

May 27, 2004.

Sandra Gillies and Bradley A. Bristow, Sacramento, under appointments by the Supreme Court, and Valerie G. Wass, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez, Marc J. Nolan, Janet E. Neeley and Tiffany S. Shultz, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Following the enactment of Proposition 36, the "Substance Abuse and Crime Prevention Act of 2000," which took effect July 1, 2001, a defendant who has been convicted of a "nonviolent drug possession offense" must receive probation and diversion into a drug treatment program, and may not be sentenced to incarceration as an additional term of probation. (Pen. Code, § 1210.1, subd. (a).)¹ A defendant is ineligible for probation and diversion to such a program, however, if he or she has been "convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." (Pen.Code, § 1210.1, subd. (b)(2).)² An offense is defined as one "not related to the use of drugs" if it does not involve the defendant's "simple possession or use" of drugs or drug paraphernalia, presence where drugs are being used, or failure to register as a drug offender, or any similar activity. (§ 1210, subd. (d).)

The issue in the present case is whether defendant, who was convicted of transporting a controlled substance (methamphetamine), a felony, together with driving a vehicle while under the influence of a controlled substance, a misdemeanor, has been "convicted in the same proceeding of a misdemeanor not related to the use of drugs," within the meaning of section 1210.1, subdivision (b)(2) and section 1210, subdivision (d). We conclude that the misdemeanor of driving a vehicle while under the influence of a controlled substance is "a misdemeanor not related to the use of drugs" within the meaning of those provisions, and that therefore section 1210.1, subdivision (a) is inapplicable to defendant. Accordingly, we affirm the judgment of the Court of Appeal upholding the trial court's determination that defendant was not entitled to probation and drug treatment diversion under Proposition 36.

I

At approximately 10:40 p.m. on March 17, 2001, a police officer observed a person driving a vehicle (with two passengers) down the center of a road, straddling the center divider, for approximately one block. The officer, suspecting the driver was under the influence of drugs or alcohol, made a traffic stop.

The driver, defendant Michelle Elaine Canty, appeared to be under the influence of alcohol or drugs, and admitted to the officer that she had ingested methamphetamine, which she also had provided to her two passengers, earlier that evening. The officer conducted a search, discovered that defendant possessed two grams of methamphetamine, and arrested her. Later tests confirmed she was under the influence of methamphetamine.

Defendant was charged with several felonies, including transportation, possession for sale, and being under the influence of methamphetamine, as well as several misdemeanors, including driving while under the influence of alcohol and a drug. It further was alleged that defendant had served a prison term in 1996 for possession of methamphetamine.

On June 19, 2001, defendant pleaded guilty to transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a)), a felony, and to driving a vehicle while under the influence of alcohol or drugs (Veh.Code, § 23152, subd. (a)), a misdemeanor. The remaining charges were dismissed.

Subsequently, Proposition 36 having become effective on July 1, 2001, the trial court referred the matter to the probation department to determine whether, pursuant to section 1210.1, subdivision (a), defendant was entitled to probation and diversion to a drug treatment program. The probation report, noting that defendant had suffered several prior convictions, recommended that she not be granted probation under Proposition 36 or any other provision, and that she serve a term in state prison for the felony drug conviction.

Defendant and her mother both submitted written requests that the trial court order that defendant receive drug treatment. Defendant's letter explained that she previously had attended a drug treatment program that had enabled her to "stay clean" for more than two years, and that she had resumed drug use only recently.

On August 7, 2001, at the sentencing hearing, the trial court denied defendant's request to be placed on probation and be diverted to a drug treatment program. The trial court determined that defendant was ineligible both because her convictions preceded the effective date of section 1210.1 and because her conviction for driving while under the influence was a "misdemeanor not related to the use of drugs" within the meaning of section 1210.1, subdivision (b)(2). The trial court imposed and suspended execution of a sentence of two years in state prison for defendant's conviction of transporting methamphetamine, placed her on five years' formal probation requiring service of 90 days in county jail, and ordered her to pay restitution and to register as a controlled substance offender. The trial court also imposed a term of six months in county jail for defendant's conviction of driving a vehicle while under the influence of drugs. Defendant timely filed a notice of reasonable grounds for an appeal based upon the sentence she received, and the trial court issued a certificate of probable cause (§ 1237.5).

The Court of Appeal accepted a concession by the Attorney General that the circumstance of defendant's offenses having predated the enactment of Proposition 36 did not render that measure inapplicable. The appellate court affirmed the trial court's ruling that defendant was not entitled to be sentenced under the provisions of Proposition 36, concluding that defendant's conviction for driving while under the influence of drugs was a "misdemeanor not related to the use of drugs" within the meaning of section 1210.1, subdivision (b)(2), and thus precluded probation and diversion to a drug treatment program. We granted defendant's petition for review.

II

Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance. Its provisions outline "an alternative sentencing scheme" for persons convicted of certain drug offenses. (In re Varnell (2003) 30 Cal.4th 1132, 1136, 135 Cal.Rptr.2d 619, 70 P.3d 1037 (Varnell).) "In effect, it acts as an exception to the punishment" provided for certain offenses involving controlled substances. (Ibid.)

Section 1210.1, subdivision (a) provides in relevant part that subject to the exceptions set forth, "any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." Section 1210, subdivision (a) defines a "drug possession offense," as used in section 1210.1, as "the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term `nonviolent drug possession offense' does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8." (As amended Stats.2003, ch. 155, § 1.)

Section 1210.1, subdivision (b) describes those defendants who are disqualified from receiving mandatory probation and diversion pursuant to section 1210.1, subdivision (a). Section 1210.1, subdivision (b)(1) generally disqualifies persons previously convicted of serious or violent felonies. Section 1210.1, subdivision (b)(2) disqualifies "[a]ny defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." (Italics added.) Section 1210, subdivision (d) defines the term "misdemeanor not related to the use of drugs" as "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)." (Italics added.)

Defendant contends that misdemeanor driving while under the influence of drugs constitutes an activity similar to "simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender," and therefore falls within the category of offenses that, as described in section 1210, subdivision (d)(2), do not disqualify a defendant from receiving probation and diversion to a drug treatment program in lieu of traditional punishment. Defendant observes that misdemeanor driving while under the influence of drugs is not similar to those offenses (such as selling or distributing drugs) listed in section 1210, subdivision (a) — offenses that are not considered to be among the "nonviolent drug possession offense[s]" that entitle a defendant to such probation and diversion.

A

In interpreting a voter initiative such as Proposition 36, we apply the same principles that govern the construction of a statute. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901, 135 Cal.Rptr.2d 30, 69 P.3d 951; People v. Rizo (2000)...